Mitzi Baker v. Social Security Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 27

Docket No. CH-1221-17-0318-W-1

Mitzi Baker,

Appellant,

v.

Social Security Administration,

Agency.

August 4, 2022

Mitzi Baker, Chicago, Illinois, pro se.

James Hail, Esquire, Linda M. Januszyk and Suzanne E. Duman, Esquire,

Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied her request for corrective action in this individual right of action (IRA)

appeal. For the following reasons, we GRANT the petition for review, VACATE

the initial decision, and REMAND the appeal for assignment to a different

administrative judge and a new hearing.

BACKGROUND

¶2 At all times relevant to this appeal, the appellant held a Paralegal Specialist

position at the agency’s Chicago National Hearing Center (NHC). Initial Appeal

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File (IAF), Tab 1 at 1, Tab 57 at 59. In October 2016, she filed a complaint with

the Office of Special Counsel (OSC), alleging that the agency had retaliated

against her for engaging in whistleblowing disclosures and other protected

activities. IAF, Tab 1 at 10-21. Over the ensuing months, the appellant and OSC

exchanged correspondence—only some of which is included in the record—as the

appellant further elaborated about her allegations. Id. at 22-25. Ultimately, OSC

closed the matter. Id. at 26-29. The appellant then filed the instant IRA appeal.

IAF, Tab 1.

¶3 The administrative judge found that the appellant met her jurisdictional

burden. IAF, Tab 20 at 7-10. During a prehearing conference, the administrative

judge revealed to the parties that he had an “ongoing personal relationship” with

an attorney “who works in the same agency office as the appellant.” IAF, Tab 24

at 1. He indicated that this “relationship would not adversely impact” his

impartiality, but he permitted the parties to file a motion seeking his recusal. Id.

The appellant did just that, but the agency argued that recusal was unnecessary.

IAF, Tabs 39, 41. The administrative judge denied the appellant’s request for

recusal, as well as her subsequent motion to reconsider and request to certify this

issue for interlocutory appeal. IAF, Tab 43 at 1-3, Tab 46 at 1-2, Tab 54 at 1-2,

Tab 59 at 5, Tab 60 at 1-2.

¶4 Because he found that the appellant met her jurisdictional burden , the

administrative judge held a hearing on the merits. Hearing Transcript, Day 1;

Hearing Transcript, Day 2. After doing so, the administrative judge found that

the appellant failed to meet her burden of proving that she made any

whistleblowing disclosures or engaged in any protected activity. IAF , Tab 77,

Initial Decision (ID) 11-54. He therefore denied the appellant’s request for

corrective action. ID at 55.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 2. The agency has filed a response, and the appellant has replied.

PFR File, Tabs 4, 7.

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ANALYSIS

¶6 In pertinent part, the appellant argues on review that the administrative

judge should have construed her pleadings liberally, he repeatedly ruled against

her, he exhibited improper behavior, he was biased against her, and he had a

conflict of interest. PFR File, Tab 2 at 2-7. As further detailed below, most of

the appellant’s arguments in this regard are not persuasive. However, we find

that the administrative judge erred in denying the appellant’s request for recusal.

Because the administrative judge’s impartiality could reasonably be questioned,

he erred in denying the appellant’s request for recusal.

¶7 From its inception, the Board has had a regulation, at 5 C.F.R. § 1201.42,

concerning the disqualification of administrative judges. Washington v.

Department of the Interior, 81 M.S.P.R. 101, ¶ 7 (1999). Section 1201.42(a)

simply provides that if an administrative judge considers himself or herself

disqualified, he or she will withdraw from the case . 1 5 C.F.R. § 1201.42(a). Yet,

this regulation is not the sole source of our disqualification standards. The Board

also looks to the disqualification standards Congress established for the Federal

judiciary at 28 U.S.C. § 455. Washington, 81 M.S.P.R. 101, ¶¶ 7-8; see Lee

v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 20 (2010) (indicating

that it is the Board’s policy to follow the standard set out at 28 U.S.C. § 455).

Among other things, section 455 requires recusal “in any proceeding in which

1

The regulation also provides for how a party may request a judge’s recusal.

Specifically, a party may file a motion requesting recusal on the basis of personal bias

or other disqualification, but must do so in an affidavit or sworn statement, as soon as

the party has reason to believe there is a basis for disqualification. 5 C.F.R.

§ 1201.42(b). If the judge denies the motion, the party may request certification of the

issue as an interlocutory appeal. 5 C.F.R. § 1201.42(c). Failure to do so is considered

a waiver of the request for recusal. Id. Although the appellant’s initial request for

recusal was not in the form of an affidavit or sworn statement, IAF, Tab 39, she

effectively remedied the oversight and complied with the regulatory requirements by

submitting a request for reconsideration in the form of a sworn statement, IAF, Tab 46

at 1-3.

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[the judge’s] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a);

Allphin v. United States, 758 F.3d 1336, 1343-44 (Fed. Cir. 2014) (quoting

28 U.S.C. § 455(a)); see PFR File, Tab 2 at 7 (alluding to the same basic

standard). “This is an objective test that mandates recusal ‘when a reasonable

person, knowing all the facts, would question the judge’s impartiality. ’” Allphin,

758 F.3d at 1344 (internal citations omitted). An “[a]ppellant[’s] subjective

beliefs about the judge’s impartiality [is] irrelevant.” Id.

¶8 The Board has infrequently addressed 28 U.S.C. § 455(a) and circumstances

in which an administrative judge’s impartiality reasonably might be questioned.

In two companion cases, the Board considered on interlocutory appeal whether an

administrative judge should recuse himself from appeals involving a particular

law firm because of a pending unfair labor practices (ULP) charge that the firm

filed against the administrative judge at the Federal Labor Relations Authority.

Colburn v. Department of Justice, 81 M.S.P.R. 146, ¶¶ 3-6 (1999);

Washington, 81 M.S.P.R. 101, ¶¶ 3-6. Generally speaking, the ULP charge

stemmed from a prior case involving a different agency and a different appellant

in which the firm believed the administrative judge’s credibility findings

reflected bias against union officials. Colburn, 81 M.S.P.R. 146, ¶ 3;

Washington, 81 M.S.P.R. 101, ¶ 3. The administrative judge denied the request

to recuse. Colburn, 81 M.S.P.R. 146, ¶ 5; Washington, 81 M.S.P.R. 101, ¶ 5.

Among other things, he conceded that his prior credibility findings were unclear,

but he indicated that they had been misconstrued. Colburn, 81 M.S.P.R. 146, ¶ 5;

Washington, 81 M.S.P.R. 101, ¶ 5. He further found that the ruling in the other

case was “wholly unrelated” to Colburn and Washington. Colburn, 81 M.S.P.R.

146, ¶ 5; Washington, 81 M.S.P.R. 101, ¶ 5.

¶9 On interlocutory review, the Board indicated that it takes seriously the

concerns of parties who come before it and assert a claim that a particular judge

should be disqualified. Colburn, 81 M.S.P.R. 146, ¶¶ 6-7; Washington,

81 M.S.P.R. 101, ¶¶ 6-7. Yet the Board agreed with the administrative judge and

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found that recusal was not required. The Board explained that the appellant had

presented nothing more than a bare claim that the judge “may” be biased by

counsel’s activity in a separate case, involving a different appellant and a

different agency, unsupported by any hint that the judge acted or ruled

inappropriately in the appeals at issue. Colburn, 81 M.S.P.R. 146, ¶¶ 9-10;

Washington, 81 M.S.P.R. 101, ¶ 19. Under the circumstances, the Board

concluded that any risk of the appearance of a conflict of interest was not enough

to warrant a different result. Colburn, 81 M.S.P.R. 146, ¶¶ 9-10; Washington,

81 M.S.P.R. 101, ¶ 19.

¶10 More recently, the Board considered whether an administrative judge should

have been disqualified from an appeal on remand from our reviewing court

because the appellant wrote and self-published a book that commented

unfavorably on the administrative judge’s physical appearance and competence ,

among other things. Shoaf v. Department of Agriculture, 97 M.S.P.R. 68,

¶¶ 6, 8-9 (2004), aff’d, 158 Fed. App’x 267 (Fed. Cir. 2005). Generally speaking,

the Board reasoned that the book at issue in Shoaf merely conveyed the

appellant’s opinion about the administrative judge, not the administrative judge’s

opinion about the appellant, and the appellant did not present any facts

establishing the administrative judge’s reaction to the book. Id., ¶ 10. Thus, the

Board concluded that the administrative judge did not abuse his discretion in

denying the request for recusal. Id. The Board also explained that a contrary

result could encourage future parties to act similarly for purposes of

judge-shopping. Id.

¶11 In another case, the Board considered whether an administrative judge

should have recused herself from an appeal because she had previously worked

with the respondent agency’s representative. Lee, 115 M.S.P.R. 533, ¶ 18.

There, the Board found that the administrative judge erred by failing to apply the

standard of 28 U.S.C. § 455(a) when she denied the appellant’s motion to recuse

and the motion to certify an interlocutory appeal of her ruling . Id., ¶¶ 19-20.

6

Nevertheless, the Board found that even under the appropriate standard, the

administrative judge did not need to recuse himself because the professional

association at issue was unremarkable and a reasonable, objective observer would

not question the administrative judge’s impartiality. Id., ¶ 22. Significantly, the

administrative judge and the agency representative were merely acquainted as

former colleagues years before at an agency that was not a party to the appeal at

issue. Id., ¶¶ 18, 21-23.

¶12 Turning back to the facts of the instant appeal, the administrative judg e

recognized and disclosed that he had an “ongoing personal relationship” with an

attorney who worked in the same Chicago NHC office as the appellant.

IAF, Tab 24 at 1. While the administrative judge’s status conference summary

describing this disclosure provided no further details about the nature of the

relationship, the appellant later characterized it as a romantic one. IAF, Tab 39

at 2. She further asserted that the administrative judge refused to elaborate about

the length of the relationship because it was “irrelevant.” Id. The administrative

judge provided no additional information about the nature of hi s ongoing personal

relationship with the attorney.

¶13 In her motion to recuse, the appellant indicated that the attorney was

“against the appellant” and worked for a particular administrative law judge

(ALJ) whom the appellant described as “one of the alleged discrimi nating

officers.” IAF, Tab 39 at 2, Tab 46 at 1. The agency responded to the appellant’s

request by arguing that the administrative judge did not need to recuse himself.

IAF, Tab 41. Among other things, the agency noted that the attorney at issue was

1 of 28 attorneys and 86 total employees in the Chicago NHC, and she was not a

witness in this appeal. Id. at 5-6.

¶14 In denying the motion to recuse, the administrative judge discussed the

Board’s general standards for a claim of bias, along with 5 C.F.R. § 1201.42, and

he noted that the appellant’s evidence made no mention of the attorney in

question. IAF, Tab 43 at 1-3. He did not, however, consider 28 U.S.C. § 455(a)

7

and/or whether his “impartiality might reasonably be question ed” or even

acknowledge the fact that the agency’s evidence mentioned that attorney.

See IAF, Tab 33 at 46-59.

¶15 Similarly, in denying the motion to reconsider, the administrative judge

alluded to the standard provided in the Merit Systems Protection Board (MSPB)

Judges’ Handbook, but he found that the associated standard did not require

recusal in this case. 2 IAF, Tab 54 at 1, Tab 60 at 2. Again, in denying the motion

to reconsider and request for certification for interlocutory appeal, the

administrative judge did not refer to or apply the standard delineated in 28 U.S.C.

§ 455(a).

¶16 On review, the appellant reasserts that the administrative judge shoul d have

recused himself from this appeal based on his personal relationship with the

attorney who is the appellant’s coworker. PFR File, Tab 2 at 5, 7. She argues

that the attorney “submitted negative statements to [a]gency investigators

regarding the appellant and those statements were submitted in the [a]gency’s

affirmative defense.” Id. at 5. Although the appellant failed to direct us to any

such statements, it appears that she may be referring to a statement from the

aforementioned ALJ. IAF, Tab 33 at 46-59.

¶17 In the ALJ’s statement, which was submitted by the agency, the ALJ

discussed her own negative interactions with and feelings about the appellant. Id.

She also provided a brief description of her two subordinate attorneys having

similar feelings about the appellant, including the attorney in the ongoing

personal relationship with the administrative judge. IAF, Tab 33 at 51-52.

2

The MSPB Judges’ Handbook describes two bases for which an administrative judge

may recuse: (1) a party, witness, or representative is a friend or relative of, or has had a

close professional relationship with the judge, or (2) personal bias or prejudice of the

judge. MSPB Judges’ Handbook, Ch. 3, § 2(a)-(b); but see Gregory v. Department of

the Army, 114 M.S.P.R. 607, ¶ 22 (2010) (explaining that the MSPB Judges’ Handbook

is not mandatory and failure to apply its provisions does not establish adjudicatory

error).

8

Specifically, the ALJ asserted that her “two Attorney Advisors were finding it

increasingly difficult dealing with [the appellant].” Id. at 51. The ALJ further

indicated that the attorney who was in an ongoing personal relationship with the

administrative judge “started closing [her] office door, and she has never been a

closed door person,” while the other subordinate attorney “repeatedly complained

. . . of how difficult [the appellant] was.” Id. The record reflects that the other

subordinate attorney was the subject of a disclosure that the appellant raised in

this appeal, while the ALJ was herself one of several recipients of the disclosure,

and the ALJ’s authority was a consideration in the administrative judge’s

analysis. Compare IAF, Tab 20 at 8 (describing in the jurisdictional order the

allegations underlying disclosure 4), with IAF, Tab 33 at 51-52 (Chicago ALJ’s

discussion of her two subordinate attorneys), and ID at 34-36 (finding that

disclosure 4 was not protected).

¶18 Put more simply, the record reflects the following about the attorney with

whom the administrative judge was in an ongoing personal relationship: (1) she

was one of only two attorneys working for a particular ALJ at the Chicago NHC,

(2) the other two members of her working group were the subject of or recipient

of the appellant’s alleged disclosure, and (3) all three employees had negative

views of the appellant, according to evidence submitted by the agency.

¶19 Under these particular circumstances, and in contrast to Lee, Shoaf,

Washington, and Colburn, we find that the administrative judge’s impartiality

could reasonably be questioned. To be sure, we may have reached a different

conclusion if the administrative judge had chosen to provide more information

about his relationship with the attorney who was the appellant’s coworker or if

the attorney was further removed from the issues involved in this appeal.

See, e.g., Ragozzine v. Youngstown State University, 783 F.3d 1077, 1078-81

(6th Cir. 2015) (finding that recusal was not required under 28 U.S.C. § 455 in a

case involving a professor’s denial of tenure whe n the judge was dating a

professor in a different department at the same university). Those are not,

9

however, the circumstances we currently face. Because we find that the

administrative judge’s impartiality reasonably might be questioned under the

circumstances presented in this appeal, he should have recused himself from this

matter.

The appellant’s arguments of actual bias or other adjudicatory improprieties on

review are not persuasive.

¶20 In making a claim of bias or prejudice against an administrative judge, a

party must overcome the presumption of honesty and integrity that accompanie s

administrative adjudicators. Oliver v. Department of Transportation,

1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course

of a Board proceeding warrants a new adjudication only if the administrative

judge’s comments or actions evidence “a deep-seated favoritism or antagonism

that would make fair judgment impossible.” Bieber v. Department of the Army,

287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States,

510 U.S. 540, 555 (1994)).

¶21 The appellant is correct to note that the Board will construe pro se

pleadings liberally. Melnick v. Department of Housing & Urban Development,

42 M.S.P.R. 93, 97 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).

However, in arguing that the administrative judge failed to adhere to t hat

principle, the appellant asserts that he “denied every pleading” she wrote.

PFR File, Tab 2 at 5. Her assertion is not supported by the record.

E.g., IAF, Tab 20 (ruling in the appellant’s favor regarding jurisdiction), Tab 43

at 5 (granting the appellant’s motion to extend the discovery period).

¶22 More specifically, the appellant argues that she “fell severely ill” during the

adjudication of her appeal, but the administrative judge improperly refused any

delay. PFR File, Tab 2 at 6. In fact, the appellant filed a motion requesting a

postponement of all deadlines to accommodate her medical condition without any

evidence of her medical condition or indication that she had first raised the

subject with the agency. IAF, Tab 40 at 1. Although the administrative judge

10

responded by denying the motion, he suggested that the appellant could instead

move for a dismissal without prejudice. IAF, Tab 40 at 1, Tab 43 at 4.

We discern no reason to conclude that the decision to deny the motion constituted

an abuse of discretion or reflected bias on the part of the administrative judge.

See Desmond v. Department of Veterans Affairs, 90 M.S.P.R. 301, ¶ 4 (2001)

(recognizing that an administrative judge has wide discretion to control the

proceedings before him and dismissal without prejudice to refiling is a procedural

option left to his sound discretion); see also Vaughn v. Department of the

Treasury, 119 M.S.P.R. 605, ¶ 18 (2013) (stating that the Board will not infer

bias based on an administrative judge’s case-related rulings).

¶23 The appellant’s other allegations of administrative judge bias or

adjudicatory improprieties are similarly unsupported or otherwise unavailing. For

example, she summarily asserts that the administrative judge “engaged in a

conspiracy with [a]gency counsel to demean, belittle, intimidate, harass, and use

[her] disabilities against her in their quest to discredit [her] at every turn.”

PFR File, Tab 2 at 5. However, she has not directed us to anything in the record

to support this contention. In another example, the appellant suggests that the

administrative judge purposefully delayed issuance of the initial decision to a void

having a particular Board Member render an opinion on her case before the

expiration of his statutorily-limited term. PFR File, Tab 2 at 6-7. But in fact, the

Board was without a quorum since January 2017, well before the end of the Board

Member’s term, and it did not render opinions throughout the relevant period.

The appropriate remedy for the administrative judge’s failure to recuse himself is

remand and assignment to a different administrative judge for a new hearing.

¶24 For the Federal judiciary, a judge’s violation of 28 U.S.C. § 455(a) does not

necessarily entitle a party to relief. Liljeberg v. Health Services Acquisition

Corporation, 486 U.S. 847, 862-64 (1988). The statute itself does not authorize a

remedy. Id. at 862. Instead, Federal courts have applied Federal Rule of Civil

Procedure 60(b), which authorizes vacating a final judgment for “any [] reason

11

that justifies relief.” Fed. R. Civ. Pro. 60(b)(6); see Liljeberg, 486 U.S. at 863.

However, such action “should only be applied in ‘extraordinary circumstances.’”

Liljeberg, 486 U.S. at 864 (internal citations omitted).

¶25 In determining whether a violation of 28 U.S.C. § 455(a) warrants vacating

a final judgment pursuant to Rule 60(b)(6), the U.S. Supreme Court

(Supreme Court) in Liljeberg identified three relevant factors: (1) “the risk of

injustice to the parties in the particular case,” (2) “the risk that the denial of relief

will produce injustice in other cases,” and (3) “the risk of undermining the

public’s confidence in the judicial process.” Id. We will consider the same

factors here. See Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161,

¶ 27 (2017) (recognizing that the Federal Rules of Civil Procedure are not

controlling, but they may be used as a general guide in proceedings before the

Board); Anderson v. Department of Transportation, 46 M.S.P.R. 341, 350 (1990)

(finding the Supreme Court’s analysis of Rule 60(b) was analogous to the Board’s

authority to reopen a case under 5 C.F.R. § 1201.117), aff’d, 949 F.2d 404

(Fed. Cir. 1991) (Table).

¶26 A review of the Court’s analysis in Liljeberg is instructive. There, the

judge had presided over a case while also serving on the Board of Trustees of

Loyola University, which was actively negotiating a land deal with the petitioner,

and Loyola’s success and benefit in those negotiations largely hinged on the

petitioner’s success before the judge. Liljeberg, 486 U.S. at 850. The respondent

learned of the judge’s membership on the Board of Trustees 10 months after the

U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) affirmed the judge’s

decision to find in favor of the petitioner. Id. The respondent moved to vacate

the judgment pursuant to Rule 60(b)(6). The judge denied the motion and the

respondent appealed. Id. After protracted litigation, the Fifth Circuit vacated the

original judgment. Id. at 851-52. In pertinent part, the court found that the judge

should have immediately disqualified himself when he had actual knowledge of

Loyola’s interest in the case; alternatively, it found that, absent actual knowledge,

12

“the appearance of partiality was convincingly established ,” and the appropriate

remedy was to vacate the judgment. Id. The Supreme Court affirmed the finding

that an objective observer would have questioned the judge’s impartiality and the

judge’s failure to recuse himself was a violation of 28 U.S.C. § 455(a).

Id. at 861-62. Then the Court evaluated the three factors discussed above to

determine the proper remedy. Id. at 862-70.

¶27 For the first of the aforementioned factors, the risk of injustice to the parties

in the case, the Court identified the following facts that might reasonably cause

an objective observer to question the judge’s impartiality: (1) it was

“remarkable” that although the judge regularly attended Board of Trustees

meetings, he “completely forgot” about Loyola’s interest in the land; (2) it was an

“unfortunate coincidence” that he was absent from a particular Board of Trustees

meeting during which the case before him was discussed; (3) it was both

“remarkable” and “quite inexcusable” that he failed to recuse himself once he had

actual knowledge of Loyola’s interest in the case; and (4) in denying the motion

to vacate, the judge did not acknowledge either his knowledge about Loyola’s

interest in the case or an awareness of a duty to recuse himself. Id. at 865-67.

Ultimately, the Court concluded that there was “a greater risk of unfairness in

upholding the judgment in favor of [the petitioner] than there [was] in allowing a

new judge to take a fresh look at the issues.” Id. at 868.

¶28 For the second factor, the risk that denying relief would cause injustice in

other cases, the Court found that providing relief may prevent injustices in future

cases by encouraging judges to promptly recuse themselves when grounds for

disqualification arise. Id. In a discussion that implicated the third factor, the risk

of undermining public confidence in the judicial process, the Court found that the

facts at hand created “precisely the kind of appearance of impropriety that

§ 455(a) was intended to prevent. The violation [was] neither insubstantial nor

excusable.” Id. at 867. The Supreme Court therefore affirmed the decision to

vacate the original judgment. Id. at 870.

13

¶29 By contrast, our reviewing court found that a new trial was not required in

CEATS Incorporated v. Continental Airlines Incorporated , 755 F.3d 1356

(Fed. Cir. 2014). In that case, the court found that a mediator breached his duty

to disclose an actual or potential conflict that could reasonably raise questions

about his impartiality. Id. at 1364. Nevertheless, because settlement negotiations

before the mediator were unsuccessful, the CEATS matter was resolved by an

impartial judge and jury, and there was no evidence that the mediator disclosed

confidential information, the court found no meaningful risk of injustice under

the first Liljeberg factor. Id. at 1358, 1366. Concerning the second

Liljeberg factor, the court indicated that it did not want to encourage similar

failures to disclose by other mediators, but the threat of injustice in other cases

was insufficient to warrant “the extraordinary step of setting aside a jury verdict.”

Id. Similarly, for the third Liljeberg factor, the court recognized that the failure

to provide relief could undermine public confidence to a degree, but it was not

enough to justify a new trial. Id. at 1367.

¶30 Turning back to the facts before us, we find that vacating the initial

decision and remanding the appeal for assignment to a different administrative

judge and a new hearing is the most appropriate remedy. Concerning “the risk of

injustice to the parties in the particular case,” we have already expressed reasons

why the administrative judge’s impartiality reasonably might be questioned.

Supra ¶¶ 17-19. Also significant to our analysis is the fact that the administrative

judge’s initial decision relied in part on demeanor-based credibility findings in

favor of the agency and against the appellant, which are virtually unreviewable on

appeal to the Board. ID at 39-40; see Haebe v. Department of Justice,

288 F.3d 1288, 1299-01 (Fed. Cir. 2002) (the Board must defer to the credibility

determinations of an administrative judge when they are based, explicitly or

implicitly, upon the observation of the demeanor of witnesses testifying at a

hearing because the administrative judge is in the best position to observe the

demeanor of the witnesses and determine which witnesses were testifying

14

credibly); Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011) (further

discussing the deference afforded to demeanor-based credibility findings). Thus,

the risk of injustice to the appellant appears quite high. As for the risk of

injustice to the agency, it is noteworthy that this appeal sought relief from a

number of alleged personnel actions, but they did not include removal or any

other action that could result in the lengthy and ongoing accrual of damages in

the form of back pay during the delay associated with a remand. IAF, Tab 20

at 9-10. Thus, the risk of injustice to the agency appears to be limited.

See Liljeberg, 486 U.S. at 868-69 (finding that the first Liljeberg factor weighed

in favor of a new trial because, among other things, no party showed that they had

detrimentally relied on the original judgment).

¶31 Concerning “the risk that the denial of relief will produce injustice in other

cases,” questions of conflicts and recusal come before the Board’s administrative

judges on a regular basis. Accordingly, we are hesitant to excuse the

circumstances at hand, lest we give the impression that administrative judges

need not take these questions seriously. See Liljeberg, 486 U.S at 868

(finding that enforcement of 28 U.S.C. § 455 may encourage more disclosures

and thoughtful recusal decisions in the future).

¶32 Finally, we find that “the risk of undermining the public’s confidence in the

judicial process,” similarly weighs in favor of remand and assignment to a

different administrative judge for a new hearing. The circumstances at hand do

not give rise to a perception that the administrative judge had a significant

financial or professional interest in a certain result, as was the case in Liljeberg.

Nevertheless, the circumstances could still undermine confide nce in the Board if

we were to excuse the administrative judge’s decision to preside over this appeal.

The situation seems particularly fraught because the administrative judge

provided minimal information about the nature of his ongoing personal

relationship with the attorney who was the appellant’s coworker. See Liljeberg,

486 U.S. at 864-65 (acknowledging that “people who have not served on the

15

bench are often all too willing to indulge suspicions and doubts concerning the

integrity of judges”). We can imagine a scenario in which an administrative

judge provided additional details about the nature of the relationship and his

efforts to insulate himself from having any knowledge about the workplace

environment that would limit any erosion of public confidence. Here, however,

the record reads as if the administrative judge was coy about the nature of his

relationship with the attorney and ignored agency evidence depicting, at best, an

unpleasant professional association between the appellant and the attorney.

¶33 After weighing the relevant factors, we find that vacating the initial

decision and remanding the appeal for assignment to a different administrative

judge and a new hearing is appropriate. While we have not found that the

administrative judge exhibited actual bias against the appellant, he nonetheless

should have granted the appellant’s request to recuse him under the circumstances

presented in this case. The appropriate remedy in this matter is a new hearing

before a different administrative judge whose impartiality cannot reasonably be

questioned.

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ORDER

¶34 For the reasons discussed above, we vacate the initial decision and remand

this case to the regional office for assignment to a different administrative judge

and further adjudication in accordance with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.